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Vol. 1.)


(No. 8.


[MAY, 1874.]




An assignment of a debt to arise for wages not yet earned, against any person by

whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer.

OPINION by MERCUR, J. The first assignment of error is to the answer of the court on an abstract proposition submitted by the plaintiff in error. In view of the broad and general terms in which the point was presented, we see no error in the answer. In some cases a valid assignment may be made of moneys thereafter to be made, or of grain thereafter to be grown: Grantham v. Hawley, Hobart, 132; or of the future earnings of a railroad; Bittenbender v. S. f E. R. R. Co. 4 Wright, 270. If counsel desire an answer applicable to the evidence in the case being tried, they should so indicate it in their point submitted.

The second assignment involves the sufficiency of the transfer to give a right of action to Moffitt against Jermyn. Leslie assigned to Moffitt “five dollars a month of my earnings in the employment of the Delaware and Hudson Canal Company, or with whomsoever I may be employed, until the amount due said Moffitt is paid.” Jermyn's name is not mentioned in the assignment. It does not appear that, at the date thereof, Leslie was in his employ, or that any business relations then existed between them.

The court charged substantially, if Moffitt did, within a few months after the assignment was made, hand a copy of it to Jermyn, and Leslie continued in his employment thereafter, then Jermyn became responsible to Moffitt at the rate of five dollars a month out of wages so earned by Leslie, until the amount due from the latter to Moffitt was paid. The answer wholly excludes from the jury all question in regard to any acceptance by Jermyn, and any express or implied agreement of his, to pay. The court assumes as matter of law, that if Moffitt merely handed a copy of the assignment to Jermyn, and Leslie thereafter continued in his employ, it gave Moffitt a right of action against Jermyn. It is true, where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. Where, however, the assignment is of a part only of the fund the law seems to be otherwise. Thus, it was said by Mr. Justice Story, in giving the opinion of the court in Mandeville v. Welch, 5 Wheat. 277, “When the order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation

Vol. I.]

Sely v. JENKINS.

(No. 8.

by an acceptance of the draft; or an obligation to accept may be fairly implied from the custom of trade or the course of business between the parties, as a part of their contract.” The reasons which he gives are, that a creditor should not be permitted to split up a single cause of action into many actions, without the assent of his debtor, thereby subjecting the latter to embarrassments and responsibilities not contemplated in his original contract. It was held in Gibson v. Cook, 20 Pick. 15, that the assignment of part of a debt will not bind the debtor, either in equity or at law, nor deprive him of the right to pay the whole to the assignor, after notice that a part has been transferred to the assignee. All the decisions relating to this question of assignment are not in entire harmony. We shall not now attempt to reconcile them. We, however, are clearly of the opinion that an assignment like the present one, which professes to transfer a debt to arise for wages not yet earned, against any person by whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer. The second assignment of error is sustained.

Judgment reversed, and a venire facias de novo awarded.



[JUNE, 1874.]





A court has no power to restrain the treasurer of a state from paying out money in

pursuance of law upon the ground that an earlier appropriation for a specific purpose has been misapplied. The treasurer as an agent of the State is bound only to pay its debts when required to do so by law.

The facts are set forth in the opinion.
The opinion of the court was delivered by

WAITE, C. J. Article V. Section 5 of the Constitution of North Carolina is in these words :

“Until the bonds of the State shall be at par, the General Assembly shall have no power to contract any new debt or pecuniary obligation in behalf of the State, except to supply a casual deficit, or for suppressing invasion or insurrection, unless it shall in the same bill levy a special tax to pay the interest annually. And the General Assembly shall have no power to give or lend the credit of the State in aid of any person, association, or corporation, except to aid in the completion of such railroads as may be unfinished at the time of the adoption of this Constitution, or in which the State has a direct pecuniary interest, unless the subject be sub

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Vol. I.]


(No. 8.

mitted to a direct vote of the people of the State, and be approved by a majority of those who shall vote thereon.”

Article V. Section 8, is in these words :

“Every act of the General Assembly levying a tax shall state the special object to which it is to be applied, and it shall be applied to no other purpose.

The Wilmington, Charlotte, & Rutherford Railroad Company was incorporated in 1855, to construct a railroad from Wilmington to Rutherford. This railroad was unfinished at the time of the adoption of the Constitution.

By an act of the General Assembly, passed on the 29th January, 1869, the capital stock of this company was increased to seven millions of dollars, and, in order to complete the road, the public treasurer was directed to subscribe four millions of dollars to the stock. The payment of this subscription was to be made in the bonds of the State having thirty years to run, the interest, at six per cent. being payable semi-annually. To provide for the payment of the interest and the principal at its maturity, the act imposed an annual tax of one eighth of one per cent. upon all the taxable property of the State, to be levied, collected and paid into the treasury as other public taxes.

This authorized subscription was made, and bonds to the amount of $3,000,000 delivered to the president of the company in part payment.

The special tax provided for was levied in 1869, and $151,491.13 collected therefrom and paid into the state treasury. Out of this, $29,400 was paid on account of the interest accruing upon the bonds, but on the 20th of January, 1870, a resolution was adopted by the General Assembly instructing and directing the treasurer not to pay any more until authorized by the General Assembly, and he thereupon suspended the payment.

On the 8th of March, 1870, the General Assembly repealed the act making appropriations to the railroad company, and directed all the bonds then in the hands of the president to be returned to the treasurer.

On the 12th of the same month, the General Assembly, by a law duly enacted, directed the treasurer to use $150,000 of the special tax funds, in payment of the ordinary expenses of the state government, and to repay advances theretofore made by the board of education, and authorized him to replace the same out of the first moneys which might come into his hands by way of dividend of corporations or of taxes theretofore or thereafter to be levied.

By another act passed December 20, 1870, he was directed to use $200,000 more of the same funds, in payment of the ordinary expenses of the state government, and the appropriation for the charitable and penal institutions, and to replace the same from the first moneys paid into the state treasury from dividends, or taxes levied and collected for general purposes.

In accordance with these directions, the treasurer used $122,091.13 of the fund collected to pay interest on these bonds, for the purposes specified in the acts.

On the 20th of December, 1871, the treasurer was forbidden by the General Assembly to apply any money collected under the revenue act of

Vol. I.)


(No. 8.

the wrong,

1871, to the repayment of any moneys borrowed under the act of December, 1870.

On the 3d of March, 1873, another act was passed, entitled “ An act to raise revenue,” and by its terms the taxes therein levied were applied to defray the expenses of the state government, and to pay the appropriations for charitable and penal institutions. A similar act, with similar application of the funds to be raised, was passed in 1874.

The plaintiff is the holder of certain of the bonds issued to the above named railroad company, on which no interest has been paid, and in this bill he asks that the treasurer may be restrained from the payment of any moneys out of the treasury of the State, until he has replaced the $122,091.13 borrowed by him from the special tax fund, applicable to the payment of the interest on the bonds issued to the said company.

The facts are all admitted by the pleadings, and the simple question presented for our determination is, whether upon such facts, the relief asked for can be granted.

The use of the special tax funds to pay the general expenses of the government was in violation of the Constitution, and therefore unlawful, but

if any exists, has been done. We are not now called upon to prevent the act, but to relieve against its consequences. The first, upon à proper application made in time, we might have done. The question now is, whether, upon this application, the latter is within our power.

The treasurer is a public officer. His office belongs to the executive department of the State. His duty is to execute the laws, not to make them. He, within his official sphere, carries into effect the will of the Legislature, and can only do what the law permits.

The courts will not by mandamus compel a public officer to do that which the law does not authorize. Neither will they restrain him from doing that which the law requires. An unconstitutional law is no law, and the court will, when properly called upon, restrain its execution, because it cannot authorize action by any one. It is for this reason that the wrongful application of this money might have been prevented. The law directing it, being unconstitutional, conferred no authority upon the treasurer to do what was required. It is quite another thing, however, to compel him, in his official capacity, to substitute other moneys now in the treasury for that which he has improperly used.

That, in substance, is what we are called upon to do in this case. True, the form of the prayer is that the treasurer be restrained from paying out money from the treasury, but the real object is to compel him to retain in the treasury an amount equal to that which he has misapplied. This requires a refusal by the treasurer to pay the orders drawn upon him to the proper authorities, pursuant to law. He is but the custodian of the public money. He has no discretion as to its use. It is held to be paid out and appropriated as the law directs.

The immediate question for our determination, therefore, is, not whether the State should provide the means and require the treasurer to replace this fund, but whether it has so done. When the order to use the $150,000 was made, the treasurer was authorized to replace it out of the first money which came into the treasury by way of dividends or taxes. When that of the $200,000 was ordered, he was authorized to replace it from

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Vol. 1.)


[No. 8.

dividends and taxes for general purposes. The revenue act of 1871, however, expressly prohibited him from using for that purpose any money collected under its authority. The acts of 1873 and 1874, do not contain any such prohibition, but they each direct that the taxes levied shall be applied to defray the expenses of the state government, and to pay appropriations for charitable and penal institutions. This is the statement of the special object to which the taxes are to be applied, required to be made in every law levying taxes, and the Constitution expressly prohibits their application to any other. While, therefore, the law does not prohibit the reimbursement of the special tax fund out of the money raised under its authority, the Constitution does. The expenses on account of which the money was taken from the fund, have already been paid with the money of the State. It is true, the money paid ought not to have been so used, but it was none the less on that account the money of the State. The bondholders might perhaps, if the money still remained in the treasury, compel its application to the payment of the interest on their bonds, but until so applied it did not become their property, and remained that of the State.

It is not claimed that there is now any money in the treasury, except that which has been collected from taxes levied under the revenue laws of 1873 and 1874, and it is clear to our minds that there is no existing law which requires, or even authorizes, the treasurer to reimburse the special fund from that. The State may be under obligation to provide for such reimbursement, but the State and the treasurer occupy different positions. The State is the debtor and bound by its pledge of faith to provide means and pay its debts. The treasurer is but an agent of the State, and bound only to pay its debts when required to do so by a valid law. If such a law exists and he refuses to act, a proper court will by mandamus compel him to perform his duty. If he threatens to divert money appropriated for the payment of a debt, on proper application, he may be restrained. But to authorize interference in either case, it must clearly appear that he wrongfully refuses to execute a valid law which has been enacted by the legislative department for his guidance. The court cannot make laws for him. It can only compel him to execute such as have been made.

As there is therefore no money in the treasury which the treasurer is authorized or required by any existing law to appropriate for the reimbursement of the special tax fund, we cannot restrain him from paying out the funds in his hands until the reimbursement has been made. The principal in this case cannot be reached through the agent now before the court.

The bill is dismissed with costs.

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